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Kinford v. Moyal

United States District Court, D. Nevada

October 28, 2019

STEVEN KINFORD, Plaintiff,
v.
SHANNON MOYAL et al., Defendants.

          SCREENING ORDER ON AMENDED COMPLAINT

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.

         Plaintiff, who is in the custody of the Nevada Department of Corrections (“NDOC”), has submitted an amended civil rights complaint pursuant to 42 U.S.C. § 1983 and has filed an application to proceed in forma pauperis. ECF Nos. 1, 4. The matter of the filing fee shall be temporarily deferred. The Court accepts Plaintiff's first amended complaint (“Amended Complaint”) as the operative complaint. ECF No. 4. The Court now screens Plaintiff's Amended Complaint pursuant to 28 U.S.C. § 1915A.

         I. SCREENING STANDARD

         Federal courts must conduct a preliminary screening in any case in which a prisoner 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 28 U.S.C. § 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, pursuant to the Prison Litigation Reform Act (“PLRA”), a federal court must dismiss a prisoner'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 America, 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 Atlantic 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 a prisoner may therefore be dismissed sua sponte if the prisoner'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).

         II. SCREENING OF AMENDED COMPLAINT

         In the Amended Complaint, Plaintiff sues multiple defendants for events that took place while Plaintiff was incarcerated at Northern Nevada Correctional Center (“NNCC”) and High Desert State Prison (“HDSP”). ECF No. 4 at 1. Plaintiff sues Defendants Shannon Moyal, Warden Bacca, Director Dzurenda, inmate Lester Canada, [1] Hubbard Pickett, the State of Nevada, [2] and John/Jane Doe 6-11. Id. at 1-3. Plaintiff alleges three Counts and seeks injunctive and monetary relief. Id. at 6-9, 12.

         The Amended Complaint alleges the following: Canada sexually and physically assaulted Plaintiff. Id. at 6. Canada choked Plaintiff out in front of unit 10 at NNCC. Id. After the assault, Plaintiff remained in the unit, and Canada spent a short time “in the hole.” Id. Canada was then allowed into the yard again and started to threaten Plaintiff. Id. Canada got a job in the kitchen in order to “keep reigns” over Plaintiff. Id. When Moyal saw this, Plaintiff was threatened and then moved to a different prison. Id. The Amended Complaint does not specify who made this threat or the content of the threat. Id.

         Canada has previously sexually assaulted Plaintiff on multiple occasions. Id. at 7. Plaintiff did not report the previous sexual assaults because he wanted to avoid being labeled a “rat” and having information about his own criminal case spread around. Id. Canada took advantage of the prison system and all the parties in this case to accomplish the sexual assaults. Id.

         The Amended Complaint further alleges that Plaintiff has well documented medical problems and had an ongoing script for 60 ibuprofen at 800 mgs. Id. at 8. Starting January 3, 2019, medical staff with NDOC reduced Plaintiff's script to 40 ibuprofen at 600 mgs. Id. This was done without notice or appointment with Plaintiff or his doctor. Id. The reduction in ibuprofen has left Plaintiff in pain. Id.

         Finally, the Amended Complaint alleges that another inmate has been talking to Plaintiff's minor daughter. Id. at 9. The inmate is in prison for lewdness with a minor, and Plaintiff's daughter is 12 years old. Id. NDOC has not done ...


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