United States District Court, D. Nevada
SCREENING ORDER ON AMENDED COMPLAINT
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
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.
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).
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).
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
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 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).
SCREENING OF AMENDED COMPLAINT
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,  Hubbard Pickett,
the State of Nevada,  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.
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.
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.
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
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 ...