MIRANDA M. DU, Magistrate Judge.
Plaintiff has filed a "Request" which seeks multiple items of relief (ECF No. 121). Although the same document appears on the court's docket as ECF Nos. 121 and 122, the court has administratively logged in each document separately, according, as best as the court can ascertain, to the nature of the relief Plaintiff appears to be seeking. Accordingly, ECF No. 121 has been designated as a "Request for Complaint's Copies" and ECF No. 122 has been designated as a "Request for W. Cobb dismissal."
The court directs Defendant's counsel to respond to each of Plaintiff's "Requests" by September 11, 2017. Plaintiff shall have until September 18, 2017, to reply to Defendant's responses.
While the court will await further memoranda from the parties on these filings to address Plaintiff's "Requests," the court in the interim will respond to Plaintiff's complaint the United States Magistrate Judge improperly dismissed Defendants McDaniel, Baker, Caldwell and State of Nevada from this case as being in excess of the undersigned's jurisdiction under 28 U.S.C. § 636. For Plaintiff's information, the dismissal of Defendants McDaniel, Baker, State of Nevada, and Caldwell occurred in the Screening Order of District Judge Du. (ECF No. 6.)
Judge Du stated that although Defendants McDaniel and Baker were named as Defendants in Plaintiff's complaint, there were no charges or allegations asserted against them in the complaint. (Id. at 6). Caldwell was dismissed because Judge Du found "Plaintiff failed to state a colorable claim against Caldwell" because "based on the allegations, it does not appear that Caldwell had used any force against the Plaintiff for the purpose of maliciously and sadistically causing harm." (Id.) The State of Nevada was dismissed as it is not considered a "person" under 42 U.S.C. § 1983.
Therefore, Defendant does not have to address the issue of the dismissal of these Defendants by the Magistrate Judge as the dismissal of them was clearly within the constitutional and statutory authority of the District Judge.
The Clerk shall include a copy of Judge Du's Screening Order (ECF No. 6) when serving this Order upon Plaintiff.
Plaintiff, who is a prisoner in the custody of the Nevada Department of Corrections ("NDOC"), has submitted a civil rights complaint pursuant to 42 U.S.C. § 1983 and has filed an application to proceed in forma pauperis. (ECF No. 1, 1-1.) The matter of the filing fee shall be temporarily deferred. The Court now screens Plaintiff's civil rights complaint pursuant to 28 U.S.C. § 1915A.
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).
In the complaint, Plaintiff sues multiple defendants for events that took place while Plaintiff was incarcerated at Ely State Prison ("ESP"). (ECF No. 1-1 at 1.) Plaintiff sues Defendants State of Nevada, NDOC Director E.K. McDaniels, Warden Renee Baker, Guard C. Rowly, and Guard Caldwell. (Id. at 8.) Plaintiff appears to allege one count and seeks monetary damages. (Id. at 1-6, 8.)
The complaint alleges the following: On March 3, 2016, prison officials told Plaintiff to get ready to go to a hospital in Ely for x-rays. (Id. at 1). Under Rowly's orders, four CERT officers transported Plaintiff to the hospital. (Id.) Rowly had dragged Plaintiff through the hallways to the transport van. (Id. at 2). Plaintiff had been wearing a "box," which had kept his hands and belly together, and shackles, which had caused Plaintiff difficulty in walking. (Id.).
Plaintiff went to the hospital. (Id. at 2-3.) On the way back to the transport van, the CERT officers had dragged and pushed Plaintiff. (Id. at 3). Rowly and Caldwell each had one of Plaintiff's arms in their hands. (Id.) When Rowly opened the double-sided cargo door, he pushed Plaintiff forward and hit Plaintiff with the other door "really hard [on] the face and forearm." (Id.) Plaintiff had asked Rowly why he had done that and Rowly responded, "Fuck you." (Id.) Rowly then picked Plaintiff up from the "box" and threw Plaintiff into the second back seat. (Id.) While Plaintiff was on his belly on the seat, Rowly hit Plaintiff in the head three or four times and held a gun to Plaintiff's ribs. (Id.) Caldwell had held a gun at Plaintiff's head and had told Plaintiff to move so that he could shoot Plaintiff. (Id.) After Rowly stopped hitting Plaintiff in the head, both officers moved away and closed the doors. (Id.)
Those officers had verbally abused Plaintiff on the way back to ESP. (Id.) Rowly had told Plaintiff, "Once we get to ESP, I'll remove the chains from you and I'll beat the shit out of you." (Id.) Plaintiff had asked Rowly what his problem was. (Id. at 4.) Caldwell responded, "The fucking reason we're doing it is because you're the biggest piece of shit in the whole world. You raped your 5-year-old daughter." (Id.) Plaintiff replied, "What the hell are you talking about?" and Rowley responded, "Yeah! That's the reason you piece of shit." (Id.) Plaintiff told them to "get informed" before they did their "stupidities." (Id.)
When they returned to ESP, Rowly had dragged Plaintiff again and had made Plaintiff's ankles sore to the point where he could not walk. (Id.) Rowly had told Plaintiff that he was going to remove Plaintiff's handcuffs and shackles and had warned Plaintiff that if he moved, Plaintiff would be sorry. (Id.) After Rowly had removed Plaintiff's chains, he told Plaintiff to undress and asked Plaintiff, "So, you want to fight me now?" (Id.) Plaintiff responded, "You're brave, 8 guards and you have the taser gun on your hands." (Id.) Rowly then kicked Plaintiff "really hard" on the ankles until another CERT officer told Rowly to stop. (Id.)
Rowly had ordered Plaintiff to "bend over, spread [his] cheeks, and cough." (Id. at 5.) Plaintiff complied and Rowly ordered Plaintiff to "do it again and again" for over 12 times. (Id.) Rowly had ordered Plaintiff to get dressed. (Id.). Plaintiff told Rowly, "[B]esides the physical abuse, you're sexually harassing me." (Id.) When Plaintiff bent over to grab his clothes, Rowly kicked Plaintiff "really hard" on Plaintiff's forearm. (Id.)
After Plaintiff had dressed, Rowly followed Plaintiff to Unit 2B. (Id.) At Unit 2B, Caldwell told the officer in the bubble that Plaintiff had "snapped at [the officers], back at the hospital." (Id.) The bubble officer said, "You must have done something to him." (Id.) Caldwell replied, "No, we did not." (Id.) The bubble officer asked if Plaintiff would be all right. (Id.) Caldwell asked Plaintiff if he would be all right and Plaintiff replied, "As long [as] you don't hit me again in the face with the door, I'll be all right." (Id.)
On March 11, 2016, prison officials told Plaintiff that he could see a medical provider. (Id. at 6.) Plaintiff had thought that he was going to see the provider for his throat. (Id.) However, when the doctor spoke to Plaintiff, he asked Plaintiff who had beat Plaintiff up and why had the doctor not been notified right away? (Id. at 6-7.) Plaintiff stated that he had reported the beating right away and did not know why the doctor had not been notified. (Id. at 7.) Plaintiff alleges assault and battery due to discrimination. (Id. at 8.)
The Court interprets Plaintiff's allegations as claim for excessive force. When a prison official stands accused of using excessive physical force in violation of the cruel and unusual punishment clause of the Eighth Amendment, the question turns on whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically for the purpose of causing harm. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (citing Whitley v. Albers, 475 U.S. 312, 320-21 (1986)). In determining whether the use of force was wanton and unnecessary, it may also be proper to consider factors such as the need for application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response. Hudson, 503 U.S. at 7. Although an inmate need not have suffered serious injury to bring an excessive force claim against a prison official, the Eighth Amendment's prohibition on cruel and unusual punishments necessarily excludes from constitutional recognition de minimis uses of physical force. Id. at 9-10.
The Court finds that Plaintiff states a colorable claim for excessive force against Defendant Rowly. Based on the allegations, Rowly had dragged Plaintiff to the point where he could not walk, had thrown Plaintiff into a van door, and had hit Plaintiff over the head multiple times for, what appears to be, the purpose of maliciously and sadistically causing harm. The Court finds that Plaintiff fails to state a colorable claim against Caldwell. Based on the allegations, it does not appear that Caldwell had used any force against Plaintiff for the purpose of maliciously and sadistically causing harm. As such, the Court dismisses Defendant Caldwell from the case, with prejudice, as amendment would be futile. Additionally, the Court dismisses Defendants McDaniels and Baker from this case, without prejudice, because there are no allegations against them in the complaint. The Court also dismisses Defendant State of Nevada, with prejudice, from this case, as amendment would be futile. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 65 (1989) (holding that states are not persons for purposes of § 1983).
For the foregoing reasons, it is ordered that a decision on the application to proceed in forma pauperis (ECF No. 1) is deferred.
It is further ordered that the Clerk of the Court file the complaint (ECF No. 1-1).
It is further ordered that the excessive force claim will proceed against Defendant Rowly.
It is further ordered that Defendants State of Nevada and Caldwell are dismissed, with prejudice, from the case, as amendment would be futile.
It is further ordered that Defendants McDaniels and Baker are dismissed, without prejudice, from the case because there are no allegations against them in the complaint.
It is further ordered that given the nature of the claim(s) that the Court has permitted to proceed, this action is stayed for ninety (90) days to allow Plaintiff and Defendant(s) an opportunity to settle their dispute before the $350.00 filing fee is paid, an answer is filed, or the discovery process begins. During this ninety-day stay period, no other pleadings or papers shall be filed in this case, and the parties shall not engage in any discovery. The Court will refer this case to the Court's Inmate Early Mediation Program, and the Court will enter a subsequent order. Regardless, on or before ninety (90) days from the date this order is entered, the Office of the Attorney General shall file the report form attached to this order regarding the results of the 90-day stay, even if a stipulation for dismissal is entered prior to the end of the 90-day stay. If the parties proceed with this action, the Court will then issue an order setting a date for Defendants to file an answer or other response. Following the filing of an answer, the Court will issue a scheduling order setting discovery and dispositive motion deadlines.
It is further ordered that "settlement" may or may not include payment of money damages. It also may or may not include an agreement to resolve Plaintiff's issues differently. A compromise agreement is one in which neither party is completely satisfied with the result, but both have given something up and both have obtained something in return.
It is further ordered that if the case does not settle, Plaintiff will be required to pay the full $350.00 filing fee. This fee cannot be waived. If Plaintiff is allowed to proceed in forma pauperis, the fee will be paid in installments from his prison trust account. 28 U.S.C. § 1915(b). If Plaintiff is not allowed to proceed in forma pauperis, the $350.00 will be due immediately.
It is further ordered that if any party seeks to have this case excluded from the inmate mediation program, that party shall file a "motion to exclude case from mediation" on or before twenty-one (21) days from the date of this order. The responding party shall have seven (7) days to file a response. No reply shall be filed. Thereafter, the Court will issue an order, set the matter for hearing, or both.
It is further ordered that the Clerk of the Court electronically serve a copy of this order and a copy of Plaintiff's complaint on the Office of the Attorney General of the State of Nevada, attention Kat Howe.
It is further ordered that the Attorney General's Office advise the Court within twenty-one (21) days of the date of the entry of this order whether it will enter a limited notice of appearance on behalf of Defendants for the purpose of settlement. No defenses or objections, including lack of service, shall be waived as a result of the filing of the limited notice of appearance.
On ________________ [the date of the issuance of the screening order], the Court issued its screening order stating that it had conducted its screening pursuant to 28 U.S.C. § 1915A, and that certain specified claims in this case would proceed. The Court ordered the Office of the Attorney General of the State of Nevada to file a report ninety (90) days after the date of the entry of the Court's screening order to indicate the status of the case at the end of the 90-day stay. By filing this form, the Office of the Attorney General hereby complies.
[Identify which of the following two situations (identified in bold type) describes the case, and follow the instructions corresponding to the proper statement.]
