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Vidal v. Sisolak

United States District Court, D. Nevada

October 10, 2019

FRANCISCO VIDAL; MARTIN NARES; DOE INMATES I THROUGH X, Plaintiff,
v.
STEVE SISOLAK; JAMES DZURENDA; BRIAN E. WILLIAMS; MIGUEL FORERO SPECIALIST; BRYAN G. M.D.; NURSE DOES I THORUGH X, Defendants.

          ORDER

          ELAYNA J. YOUCHAH UNITED STATES MAGISTRATE JUDGE.

         Before the Court is Plaintiff Francisco Vidal's Emergency Motion for Injunctive Relief appearing on a Civil Rights Complaint form. ECF No. 1-1. Plaintiff's Motion/Complaint is not accompanied by a request to proceed in forma pauperis and Plaintiff has not paid the filing fee necessary to initiate a case. For this reason alone, Plaintiff's Motion/Complaint need not be considered by the Court. Ordinarily, Plaintiff must either submit a completed in forma pauperis application or pay the filing fee before the Court ordinarily screens the complaint under 28 U.S.C. § 1915(e)(2).

         Despite the failure to complete an in forma pauperis application or pay the filing fee, the Court screens Plaintiff's filing.

         I. Screening Procedure

         When screening a prisoner complaint, a court must identify cognizable claims and dismiss claims that are frivolous, malicious, fail to state a claim on which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). To survive § 1915 review, a complaint must “contain sufficient factual matter, accepted as true, to state a claim of relief that is plausible on its face.” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court liberally construes pro se complaints and may only dismiss them “if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting Iqbal, 556 U.S. at 678).

         When considering whether Plaintiff's Complaint/Motion is sufficient to state a claim, all allegations of material fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit P'ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Although the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. Unless it is clear the complaint's deficiencies could not be cured through amendment, a pro se plaintiff should be given leave to amend the complaint with notice regarding the complaint's deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). Here, Plaintiff lacks standing to bring the first claim for relief he has filed.

         II. Plaintiff's Complaint/Motion

         A. Plaintiff's First Claim for Relief

         Plaintiff's first claim for relief is asserted on behalf of another prisoner who Plaintiff identifies as Martin Nares. In order for Plaintiff to state a claim for injunctive relief on behalf of another, Plaintiff must establish what is known as third-party standing (the right to bring the claim to court on behalf of another).

         To satisfy the standing requirements of Article III, a party seeking a declaratory judgment “must allege facts from which it appears there is a substantial likelihood that he will suffer injury in the future.” Bauer v. Texas, 341 F.3d 352, 358 (5th Cir.2003) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 102-03 (1983)). In Plaintiff's first cause of action, he cites no injury to himself and makes no claim that there is a substantial likelihood that he will suffer injury in the future. Thus, Plaintiff does not have standing to bring this claim.

         To establish third party standing to bring his first claim for relief, Plaintiff would have to establish, at a minimum, (1) a close relationship to the third party, and (2) some genuine obstacle preventing the third party from asserting their own rights. Singleton v. Wuff, 428 U.S. 106, 114-15 (1976); Innovation Review Lab v. Nielsen, 310 F.Supp. 1150, 1161 (D. Or. 2018). Here, even if there were a basis to consider third party standing, Plaintiff alleges no relationship between himself and Mr. Nares other than they are both prisoners in the same facility. Plaintiff also does not explain why Mr. Nares cannot bring a claim on his own behalf. For these reasons, Plaintiff's first cause of action fails as stated.[1]

         B. Plaintiff's Second Claim for Relief

         Plaintiff's second claim for relief is sought on his own behalf and alleges the denial of medical care for a lump in his groin. Plaintiff claims not only did he not receive adequate medical care, but there was deliberate indifference to his medical need. Plaintiff also asserts medical malpractice and negligence. Before discussing the substance of Plaintiff's claim, the Court notes that Plaintiff sues every defendant in his/her official and individual capacity. State officials sued in their official capacity are not persons under section 1983 unless they are sued for prospective injunctive relief. Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 & n. 10 (1989).

         In Plaintiff's second claim for relief he only identifies defendants Dr. Bryan and Dr. Manalang, and further states that he has been putting in medical kites that have been ignored. Plaintiff asks the Court to compel “them” to follow through with specific medical procedures he discussed with each of these two defendants (a ...


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