United States District Court, D. Nevada
J. YOUCHAH UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiff Arnold Copeland’s Amended Civil
Complaint alleging violation of his civil rights pursuant to
42 U.S.C. § 1983 (ECF No. 8).
Court granted Plaintiff’s in forma pauperis
application on March 7, 2019, dismissed Plaintiff’s
Complaint without prejudice, and provided Plaintiff with an
opportunity to amend his Complaint, which he did in a timely
manner. The Court now screens the Amended Complaint pursuant
to 28 U.S.C. § 1915(e).
courts are given the authority to dismiss a case if the
action is legally “frivolous or malicious, ”
fails to state a claim upon which relief may be granted or
seeks monetary relief from a defendant/third party plaintiff
who is immune from such relief. 28 U.S.C. § 1915(e)(2).
A complaint, or portion thereof, should be dismissed for
failure to state a claim upon which relief may be granted
“if it appears beyond a doubt that the plaintiff can
prove no set of facts in support of his claims that would
entitle him to relief.” Buckey v. Los Angeles,
968 F.2d 791, 794 (9th Cir. 1992). A complaint may be
dismissed as frivolous if it is premised on a nonexistent
legal interest or delusional factual scenario. Neitzke v.
Williams, 490 U.S. 319, 327–28 (1989). Moreover,
“a finding of factual frivolousness is appropriate when
the facts alleged rise to the level of the irrational or the
wholly incredible, whether or not there are judicially
noticeable facts available to contradict them.”
Denton v. Hernandez, 504 U.S. 25, 33 (1992). 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).
Court shall liberally construe a complaint by a pro se
litigant. Eldridge v. Block, 832 F.2d 1132, 1137
(9th Cir. 2007). This is especially important for civil
rights complaints. Ferdik v. Bonzelet, 963 F.2d
1258, 1261 (9th Cir. 1992). However, a liberal construction
may not be used to supply an essential element of the claim
absent from the complaint. Bruns v. Nat’l Credit
Union Admin., 12 F.3d 1251, 1257 (9th Cir. 1997)
(quoting Ivey v. Board of Regents, 673 F.2d 266, 268
(9th Cir. 1982)).
12(b)(6) of the Federal Rules of Civil Procedure provides for
dismissal of a complaint for failure to state a claim upon
which relief can be granted. Review under Rule 12(b)(6) is
essentially a ruling on a question of law. See Chappel v.
Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir.
2000). A properly pled complaint must provide a “short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2); Bell
Atlantic Corp. v. Twombley, 550 U.S. 544, 555 (2007).
Although Rule 8 does not require detailed factual
allegations, it demands “more than labels and
conclusions” or a “formulaic recitation of the
elements of a cause of action.” Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Papasan
v. Allain, 478 U.S. 265, 286 (1986)). The court must
accept as true all well-pled factual allegations contained in
the complaint, but the same requirement does not apply to
legal conclusions. Iqbal, 129 S.Ct. at 1950. Mere
recitals of the elements of a cause of action, supported only
by conclusory allegations, do not suffice. Id. at
1949. Secondly, where the claims in the complaint have not
crossed the line from plausible to conceivable, the complaint
should be dismissed. Twombly, 550 U.S. at 570.
part of a complaint filed by a prisoner may therefore be
dismissed sua sponte if the prisoner’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).
SUMMARY OF FIRST AMENDED COMPLAINT
is presently incarcerated at the Nevada Southern Detention
Center (“NSDC”) where he was at all relevant
times. Plaintiff further alleges the Director/Warden, Medical
Supervisor, Dr. Jason Liu, and Dr. Jay Peterson are proper
defendants in this action. Plaintiff identifies the
Director/Warden and Medical Supervisor as John Doe I and John
states that the “medical staff” at NSDC: (1) was
“fully aware” of the issues with his hip and his
extreme discomfort; (2) showed deliberate indifference to the
fact that he was “forced to sleep on the floor while
other similarly situated individuals received proper medical
treatment and diagnosis which allowed the access to
medication[, ] lower bunk access and routine
treatment”; and (3) violated his Fifth Amendment rights
to due process when Drs. Liu and Peterson intentionally
ignored his continued requests for proper medical care.
Plaintiff states he used and exhausted the grievance process
and that his grievance was denied. Plaintiff says he has
“suffered unnecessarily, ” experienced intense
pain, slept on the floor, and “languished in duress and
depression.” Plaintiff states he now uses a wheelchair
and that his injuries were exacerbated without just cause.
Plaintiff seeks a declaratory judgment, compensatory damages
for $125, 000 against each defendant, and punitive damages of
$25, 000 against each defendant. Plaintiff also seeks a jury
trial if necessary.
Claims Against The Defendants
officials sued in their official capacity are not persons
under § 1983. Will v. Michigan Dept. of State
Police, 491 U.S. 58, 71 (1989). However, a state
official sued in his personal capacity may be found liable
for damages if a plaintiff can show that the defendant
personally violated his constitutional rights. OSU
Student Alliance v. Ray, 669 F. 9d 1053, 1069 (9th Cir.
2012). Plaintiff brings suit against all Defendants in both
their official and individual capacities. The Court must
determine whether a suit is brought against a defendant in
his individual or official capacity by considering the