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Pompilius v. State

United States District Court, D. Nevada

October 23, 2019

AMMIANUS POMPILIUS aka Anthony Prentice and ANTHONY SALAZAR, Plaintiffs
STATE OF NEVADA EX REL, et al., Defendants



         Plaintiffs Ammianus Pompilius and Anthony Salazar (collectively Plaintiffs) are in the custody of the Nevada Department of Corrections (NDOC). They filed a first amended complaint (FAC) in state court, which the defendants removed to this court. It appears from the documents and the removal statement that removal to federal court was proper. I now screen the FAC (ECF No. 1-2) under 28 U.S.C. § 1915A.


         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, the Prison Litigation Reform Act (PLRA) requires the federal court to 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).


         Plaintiffs sue multiple defendants for events that took place while they were incarcerated at High Desert State Prison (HDSP) and Ely State Prison (ESP). ECF No. 1-2 at 2. Plaintiffs sue defendants Associate Warden Byrne, Caseworker M. Castro, Chaplain Calderin, [1] Warden Baker, State of Nevada ex rel, Nevada Department of Corrections, Director Dzurenda, Warden Filson, Investigator General's Office, Correctional Officer (C/O) Wheeler, Senior C/O Mullins, and C/O Gonzales.[2] Id. at 2-6. Plaintiff alleges two counts and seeks monetary and injunctive relief. Id. at 15, 21.

         A. Count I

         In count I, Plaintiffs allege the following: On February 21, 2016, Mullins directed officers to search Pompilius's cell for a second time in a week. ECF No. 1-2 at 7. Wheeler and Gonzales cuffed Pompilius and his cellmate and put them in the shower. Id. Gonzales and Wheeler searched Pompilius's cell for 4.5 hours. Id. An average cell search was about 10 to 20 minutes. Id. When Pompilius returned to his cell, his television was broken, his personal items were destroyed, and his trash can was filled with his personal property. Id. Mullins, Wheeler, and Gonzales all denied Pompilius's request for a grievance. Id. When Pompilius tried to file an emergency grievance on February 21 or 22, Mullins and Wheeler refused to pick up the grievance. Id. at 11.

         On February 21 or 22, 2016, Pompilius wrote an inmate request to Baker and told her about the incident, requested that video footage be saved, and asked that the officers be sanctioned. Id. at 8. Baker responded that the video cameras did not look into Plaintiff's cell and that the officers involved had been spoken with. Id. Pompilius filed an informal grievance. Id. Castro responded that the policies had changed since this incident to reflect a more professional approach to cell searches and denied Plaintiff's grievance. Id. Pompilius filed a first level grievance but the response was the same. Id. “Defendants” failed to take any actions to replace Pompilius's property. Id. Pompilius continued to be harassed by Mullins, Wheeler, and Gonzales. Id.

         In March 2016, Salazar moved in with Pompilius. Id. Salazar became a target of the “same harassment.” Id. When Salazar moved in, both Plaintiffs were never given the phone. Id. at 8-9. If Plaintiffs did receive the phone, Mullins and Wheeler would unplug it. Id. at 9. Pompilius filed a number of grievances on the issue but Castro did not address them. Id. Mullins, Wheeler, and Gonzales denied Plaintiffs fingernail clippers, kites, grievances, and showers. Id. Prison officials denied Plaintiffs access to outside recreation. Id. On an almost daily basis, Wheeler and Mullins made threats of cell searches and destruction of property over Plaintiffs' intercom. Id.

         On October 14, 2016, Plaintiffs were porters. Id. Mullins told them that he was going to fire them as soon as possible. Id. The next day, Salazar received a hobby craft package with yarn. Id. Pompilius and a neighbor were talking about yarn when Mullins, who was listening over the intercom, told Plaintiffs, “I told you I would fire you.” Id.

         At some point, Pompilius had an upcoming inmate mediation conference for another civil rights case and began talking to the Attorney General's Office. Id. at 10. Pompilius decided not to settle that case because he wanted to amend his complaint to include harassment and retaliation by Mullins, Wheeler, and Gonzales. Id.

         Plaintiffs were slotted to work at dinner but Mullins told them that they had been suspended for making threats. Id. Mullins told Plaintiff that he did not feel his officers were safe because Plaintiffs were using lawsuits to hold them hostage. Id. Pompilius told Mullins that he had a constitutional right to sue them. Id. Another officer informed Plaintiffs that someone had written Plaintiffs up for “threats, ” a “complete fabrication.” Id. at 11. Prison officials fired Plaintiffs from their jobs. Id. The harassment began in February 2016 for the filing of grievances. Id. “Plaintiffs have reported and or attempted to report this retaliation and harassment on numerous occasions over the year it occurred.” Id. Plaintiffs collectively have filed 20 grievances but Castro, Baker, Byrnes, and Filson have ignored the issues. Id. at 12. The Investigator General's Office also ignored Plaintiffs' letter. Id.

         Plaintiffs allege violations of the Eighth Amendment right to be free from cruel and unusual punishment and Fourteenth Amendment due process and equal protection. Id. at 7. Pompilius only sues defendants Baker, Triston[3], Castro, and Dzurenda because he filed a separate lawsuit against the other defendants. Id. Salazar sues all defendants. Id.)

         1. Plaintiff Pompilius

         As an initial matter, Plaintiff Pompilius, aka Anthony Prentice, is correct that he sued the other defendants for these issues in Prentice v. Stogner et al, 3:16-cv-00060-MMD-WGC.[4] To the extent that Pompilius is only suing defendants Baker, ...

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