United States District Court, D. Nevada
FRANCISCO VIDAL; MARTIN NARES; DOE INMATES I THROUGH X, Plaintiff,
STEVE SISOLAK; JAMES DZURENDA; BRIAN E. WILLIAMS; MIGUEL FORERO SPECIALIST; BRYAN G. M.D.; NURSE DOES I THORUGH X, Defendants.
J. YOUCHAH UNITED STATES MAGISTRATE JUDGE.
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. Â§ 1915(e)(2).
the failure to complete an in forma pauperis
application or pay the filing fee, the Court screens
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).
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.
Plaintiff's First Claim for Relief
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).
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.
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.
Plaintiff's Second Claim for Relief
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).
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