United States District Court, D. Nevada
M. Navarro, Judge.
who is in the custody of the Nevada Department of Corrections
(“NDOC”), has submitted a civil rights complaint
under 42 U.S.C. § 1983 and has filed an application to
proceed in forma pauperis, a motion for preliminary
injunction, and a motion requesting preliminary injunction be
granted. (ECF Nos. 1, 1-1, 3, 4). The matter of the filing
fee will be temporarily deferred. The Court now screens
Plaintiff's civil rights complaint under 28 U.S.C. §
1915A and addresses the motions.
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,
pursuant to the Prison Litigation Reform Act
(“PLRA”), a federal court must 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 COMPLAINT
complaint, Plaintiff sues multiple defendants for events that
took place while Plaintiff was incarcerated at High Desert
State Prison (“HDSP”) and Southern Desert
Correctional Center (“SDCC”). (ECF No. 1-1 at 1).
Plaintiff sues Defendants Director of Nursing Scott
Mattinson, Medical Director Michael Minev, and Associate
Warden J. Nash. (Id. at 1-2). Plaintiff alleges one
count and seeks monetary and injunctive relief. (Id.
at 4, 9).
complaint alleges the following: In 2016, Plaintiff acquired
a “lingering chronic cough and chest pains” that
has lasted for three years. (Id. at 3). In 2016,
Plaintiff wrote medical kites about his lingering chronic
cough and chest pains. (Id. at 4). However,
Plaintiff was never diagnosed and none of the treatments that
prison officials provided to Plaintiff have helped.
26, 2018, Plaintiff filed an informal grievance because he
had not seen a doctor to give him a proper diagnosis.
(Id.) The response stated that Plaintiff's
grievance had been resolved but Plaintiff had not received
any diagnosis by a doctor and had not seen a doctor.
(Id.) Plaintiff filed more kites on July 16, 2018,
July 31, 2018, and August 2, 2018 because the medication
prison officials had given Plaintiff was not helping.
September 27, 2018, Plaintiff filed a grievance explaining
that his condition continued and that he had not seen a
doctor yet. (Id. at 5). Mattinson granted the
grievance in Plaintiff's favor. (Id.) However,
Plaintiff had still not received a diagnosis and had not seen
a doctor. (Id.) On October 3, 2018 and October 15,
2018, Plaintiff wrote more medical kites about his condition.
(Id.) In October or November 2018, Plaintiff saw a
doctor who gave Plaintiff medication. (Id.) However,
the medication did not help with Plaintiff's condition.
(Id.) On December 6, 2018, Plaintiff wrote another
kite to be seen by a doctor again and noted that he had not
been given a diagnosis. (Id.) On December 27, 2018
and January 19, 2019, Plaintiff filed two more medical kites
because, despite seeing the doctor, nothing was helping
Plaintiff's condition. (Id.) “Things were
only getting worse” for Plaintiff and he still had no
diagnosis. (Id.) Plaintiff's cough continues to
get worse along with his chest pains. (Id.)
Mattinson was aware of Plaintiff's condition.
(Id.) Some days Plaintiff's chest pain was
unbearable. (Id. at 6). Plaintiff alleges a claim
for Eighth Amendment deliberate indifference to serious
medical needs. (Id. at 4).
Eighth Amendment prohibits the imposition of cruel and
unusual punishment and “embodies ‘broad and
idealistic concepts of dignity, civilized standards,
humanity, and decency.'” Estelle v.
Gamble, 429 U.S. 97, 102 (1976). A prison official
violates the Eighth Amendment when he acts with
“deliberate indifference” to the serious medical
needs of an inmate. Farmer v. Brennan, 511 U.S. 825,
828 (1994). “To establish an Eighth Amendment
violation, a plaintiff must satisfy both an objective
standard-that the deprivation was serious enough ...