United States District Court, D. Nevada
AMMIANUS POMPILIUS aka Anthony Prentice and ANTHONY SALAZAR, Plaintiffs
STATE OF NEVADA EX REL, et al., Defendants
SCREENING ORDER ON FIRST AMENDED
COMPLAINT (ECF NO. 1-2)
P. GORDON, UNITED STATES DISTRICT JUDGE.
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.
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).
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).
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.
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.
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).
SCREENING OF FAC
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,  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. Id. at 2-6. Plaintiff alleges two
counts and seeks monetary and injunctive relief. Id.
at 15, 21.
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.
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
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.
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.
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.
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.
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, Castro, and
Dzurenda because he filed a separate lawsuit against the
other defendants. Id. Salazar sues all defendants.
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. To the extent that Pompilius is only suing
defendants Baker, ...