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Maldanado v. Nevada Department of Corrections

United States District Court, D. Nevada

July 17, 2019

UBALDO U. MALDANADO, Plaintiff,
v.
NEVADA DEPARTMENT OF CORRECTIONS, et al., Defendants.

          SCREENING ORDER ON FIRST AMENDED COMPLAINT

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE.

         Plaintiff, who is in the custody of the Nevada Department of Corrections (“NDOC”), has filed an amended civil rights complaint pursuant to 42 U.S.C. § 1983 and has filed an application to proceed in forma pauperis. (ECF No. 1, 7.) The matter of the filing fee will be temporarily deferred. The Court now screens Plaintiff's amended civil rights complaint under 28 U.S.C. § 1915A.[1]

         I. SCREENING STANDARD

         Federal courts must conduct a preliminary screening in any case in which an incarcerated person seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. See Id. §§ 1915A(b)(1), (2). Pro se pleadings, however, must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) the violation of a right secured by the Constitution or laws of the United States, and (2) that the alleged violation was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

         In addition to the screening requirements under § 1915A, pursuant to the Prison Litigation Reform Act (“PLRA”), a federal court must dismiss an incarcerated person's claim if “the allegation of poverty is untrue” or if the action “is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for failure to state a claim upon which relief can be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the court applies the same standard under § 1915 when reviewing the adequacy of a complaint or an amended complaint. When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

         Review under Rule 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). 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. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making this determination, the court takes as true all allegations of material fact stated in the complaint, and the court construes them in the light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). While the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id.

         Additionally, a reviewing court should “begin by identifying pleadings [allegations] that, because they are no more than mere conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can provide the framework of a complaint, they must be supported with factual allegations.” Id. “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. “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.” Id.

         Finally, all or part of a complaint filed by an incarcerated person may therefore be dismissed sua sponte if that person's claims lack an arguable basis either in law or in fact. This includes claims based on legal conclusions that are untenable (e.g., 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 (e.g., fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).

         II. SCREENING OF FIRST AMENDED COMPLAINT

         In the first amended complaint (“FAC”), Plaintiff sues multiple defendants for events that took place while he was incarcerated at Lovelock Correctional Center (“LCC”). (ECF No. 7 at 1.) Plaintiff sues Romeo Aranas, R. Donnelly, Kim Adamson, J. Perry, Steve Sisolak, Barbara Cegavske, Aaron Ford, James Dzurenda, and Renee Baker. (Id. at 2-4.) He also sues Does 1-10 doctors on the Utilization Review Committee. (Id. at 4.) Plaintiff alleges two counts and seeks monetary damages and injunctive relief. (Id. at 10, 17.)

         The FAC alleges the following. In July 2012, the NDOC incorrectly repaired Plaintiff's hernia. (Id. at 6.) The hernia subsequently re-emerged, causing pain and limited mobility. (Id.) On July 29, 2017, after numerous requests that his hernia be treated for pain, Plaintiff filed an informal grievance complaining about the lack of medical care for his re-emerged hernia and pain. (Id. at 6, 19-20.) Nurse Donnelly responded to the grievance, noting the last time that Plaintiff had been seen by a doctor for his hernia and that the UR panel determined that Plaintiff should be monitored, and telling Plaintiff that, if he was having increased pain and his hernia was becoming more uncomfortable, he should kite for an appointment to be re-evaluated. (Id. at 8, 21.)

         On September 27, 2017, Plaintiff filed his first level grievance complaining that monitoring a known serious medical need exhibited a refusal to treat due to costs or understaffing and that the NDOC or Romeo Aranas and Dr. Adamson held a false belief that the hernia would cure itself, exhibiting deliberate indifference to serious medical needs. (Id. at 8.) J. Perry denied the grievance on December 4, 2017. (Id. at 8, 25.) In the grievance response, Perry noted that the Utilization Review Committee recommended that the hernia continue to be monitored, that Plaintiff was seen again on July 2, 2016 and a “small ½ cm umbilical hernia” was noted, and that Plaintiff was seen by a doctor again on December 1, 2017. (Id. at 7, 8, 25.)

         Plaintiff filed a second-level grievance on December 4, 2017, pointing out that he was still in pain and that monitoring the hernia was doing nothing to fix it. (Id. at 8.) Defendant Aranas responded to that grievance. (Id. at 8, 28.) In the response, Aranas stated that Plaintiff's complaints were unfounded because Plaintiff had a surgical repair; Aranas saw no kites in Plaintiff's chart requesting an appointment for hernia issues; Plaintiff had been seen recently by a doctor and no mention had been made of hernia pain; and the last time Plaintiff was seen by a doctor for his hernia the doctor had determined that Plaintiff was in no need of a second repair at the time but had nevertheless submitted a surgical consult that was deferred. (Id. at 28.) In the response, Aranas also advised Plaintiff that, if he was experiencing increasing pain or the hernia became worse, he should submit a request for further evaluation and care. (Id.)

         Plaintiff also alleges that state law imposes certain job responsibilities on Defendants Sisolak, Ford, Cegavske, Dzurenda, and Baker as well as on the Board of Parole Commissioners and this make them responsible for the care of inmates. (Id. at 10-12.) He therefore alleges that these Defendants knew or should have known that there were not enough doctors at the prison. (Id. at 13.) He also concludes that, because they are responsible for his care, they are responsible for the refusal to repair his hernia. (Id.) Plaintiff alleges that this ...


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